A recent study by the UK Advertising Standards Authority (ASA) found that the majority of social media influencers (still) break consumer and advertising laws.
The ASA report, “Influencer Tracking Report (March 2021)(the “Report”) has been undertaken as part of the ASA’s commitment to have more impact online, as well as being more proactive in their regulation and demonstrates its enhanced oversight function.
What the rules say
The rules of the UK Code for non-broadcast advertising and direct and promotional marketing (the “CAP Code”) require that:
- Marketing communications must be clearly identifiable as such (rule 2.1);
- Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside of their trade, business, craft or profession; marketing communications must clearly state their commercial intent, if it is not clear from the context (rule 2.3); and,
- Marketers and publishers should make it clear that infomercials are marketing communications; for example, by labeling them “advertising element” (rule 2.4).
The CAP code applies to advertisements in all non-broadcast media, including digital platforms, such as Instagram, Facebook, YouTube, Snapchat, Twitter and TikTok.
What the report says
Although the ASA publishes advice for influencers (including ‘The Influencer Checklist for Reporting Social Media Ads‘) and previous rulings on the topic of social media advertising, the ASA concluded that neither influencers nor associated brands take sufficient care to ensure consumers know when something is an infomercial.
As the majority of influencer-related advertising complaints come from Instagram, the ASA focused on this platform as part of its three-week monitoring exercise in September 2020. A total of 122 UK-based influencers Uni were monitored, which included observing 24,000 Instagram Stories (as previous complaints were mostly related to the use of this feature). Normal posts, IGTV and the Reels feature were also scrutinized. The report concluded that nearly a quarter of those 24,000 stories were categorized as marketing, and only 35% of those stories that were rated as including advertising were properly labeled.
The report says the ASA continues to see “far too many incidences of non-disclosure, which threaten to discredit this marketing discipline and engender consumer distrust”.
The report’s findings and recommendations on common issues to watch out for are:
1. Inconsistent Disclosure Across Stories
Each individual story must be disclosed as an announcement, unless it is explicitly clear that it is from the same publication. It’s not enough to just label the first story, as subsequent sequels may not be obviously recognizable as advertisements.
2. Inconsistent Disclosure in Stories, IGTV, Reels, Posts
Sometimes a post in one of these mediums was leaked as an announcement, but not in the other mediums. For example, the post accurately indicated that the content was an advertisement, but not the corresponding Story.
3. Visibility of ad labels
Labels disclosing content as “advertisement” were often in small print or difficult to spot, perhaps because they were obscured by the architecture of the platform or written in a similar color on the back- shot of a Story. Labeling should be easy to spot on mobile, desktop or any other device. The wording of the ad or #ad, so frequently recommended in previous ASA rulings, often appeared at the end of the text or below the “fold”. Instead, ad disclosure should be the first thing the consumer sees.
4. Affiliate content is still an advertisement
As mentioned in previous ASA rulings, “#affiliate” or “#aff” appearing without further disclosure is not sufficient to reveal to users the advertising nature of the content. It is recommended to use #ad, even when the post includes affiliate marketing.
5. Own brand ads
Influencers should not rely on biographies or past posts to clearly indicate that they are related to a product. If they state in their story “here is my book” or “download my app”, it is probably clear that they are connected to their product. When the content is unclear, the ad should be labeled in a sufficiently prominent way.
What does it mean?
Many of the rules contained in the PAC code are supported by legislation, including the Consumer Protection from Unfair Commercial Practices Regulations 2008and so if an influencer does not sufficiently disclose that a post is in fact marketing, there is a real risk that the influencer (and the brand) will not only violate the CAP code, but commit a criminal offense.
The ASA said that with the guidelines now available, influencers simply have no excuse not to make it clear to consumers when content has been paid for by a brand. In addition, the ASA warns that they have written to all of the influencers they have monitored as well as a number of brands that were featured in the ads and have “warned” them that they will be conducting future spot checks. monitoring. If these spot checks (or indeed any consumer complaint) reveal further instances of non-compliance, they will take enforcement action. Sanctions may include removal of advertisements, public rulings, a non-compliant dedicated page on the ASA website (and the associated poor public relations that accompanies any public reprimand), removal and restrictions of paid search advertisements on the platforms and, in serious cases, referral to commercial standards and the Competition and Markets Authority.
How can influencers and brands ensure compliance?
Clearly, brands cannot condone the actions of their influencer and can be held jointly liable if an influencer breaks the rules. Brands and influencers should:
- Be careful with the wording of their contract (e.g. regarding hashtag obligations and disclosure requirements on posts) and have a robust approval process and proper follow-up;
- Ensure marketing communications are identified as such by displaying #ad or ‘ad’ in a prominent and central position on social media posts, whether or not there is a contractual agreement in place to advertise the ad. a product, or that the agreement is more similar to that of an affiliate relationship;
- Avoid using labels such as “supported/funded by”, “in association with”, “thanks to [ ]’sponsorship’, #aff/affiliate and #sp/sponsor’;
- Make sure tagging is prominently displayed in all formats, rather than buried in a sea of hashtags, and make sure tagging is included in posts where it’s not explicitly clear, when they are considered separately, that the marks in question are marks in which the individual publication has a financial interest;
- Use tools that help distinguish advertising content; and,
- Seek legal advice from a marketer.